TMI Blog2014 (3) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... rections of the High Court. The defaulting allottes of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms. It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. Appeal allowed - decided in favor of appellant. - CIVIL APPEAL NOs. 5698-5699 OF 2009 - - - Dated:- 14-3-2014 - Dr. B.S. Chauhan And M.Y. Eqbal JJ. For the Appellant : Mrs.Rachana Joshi Issar,Adv. For the Respondent : None ORDER M.Y. EQBAL, J.: 1. These appeals are directed against the judgment and order dated 8.1.2009 passed by the Punjab Haryana High Court in C.W.P. No.8864 of 2007 and also order dated 27.3.2009 passed in Review Petition No. 112 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circular a very high rate of extension fee was proposed to be charged. The respondent from time to time deposited the extension fee so demanded by the appellant. It is alleged that an amount of ₹ 1.20 lacs has been in excess charged from the respondent. The appellant s case is that the appellant in an attempt to nullify the effect of the judgment rendered in Tehal Singh s case and to validate the demand of enhanced rate of extension fee purportedly framed the Rules called Punjab Regional and Town Planning and Development (General) Second Amendment Rules, 2001 (in short 2001 Rules ) giving retrospective effect. 6. The respondent moved a writ petition being C.W.P. No. 7934 of 2004 praying inter alia for the directions to refund the excess fee charged from the respondent. It was disposed of with the directions to the appellant to reconsider the representation and to dispose of the same in the light of the order passed in C.W.P. No.13648 of 1998 (Tehal Singh s case). In compliance with the aforesaid directions, the respondent s representation was considered and came to be rejected by the appellant vide order dated 23.12.2004 on the ground that in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee as per the provisions of Rule 13 of the Rules and refund the overpayment alongwith interest 10% per annum. 8. We have heard Mrs. Rachna Joshi Issar, learned counsel appearing for the appellant. 9. As noticed above, the plot in question was allotted to the respondent vide an allotment letter dated 1.4.1986. In terms of the allotment letter, the allottee had to fulfill the terms and conditions enumerated in the said letter. The terms and conditions of the said allotment are extracted hereinbelow:- 1. Plot No. 2177 Phase-II measuring 400 sq. yds. in Durgri Rd. Urban Estate has been allotted to you. The tentative price of the said plot is ₹ 51,000/- 2. The plot is preferential one and additional price at the rate of 10% of the original normal price is Rs. 3. Total price of the plot (normal) plus preferential is ₹ 51,000/- 4. The above price of the plot is subject to variation with reference to the actual measurement of the site as well as in cost of enhancement of compensation by the court or otherwise and you shall have to pay the additional price of the plot if any, determined by the department, within 30 days of the date of demand of in case of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of issue of allotment order, after getting the plans of the proposed building approved by the competent authority. 13 The Government shall not be responsible for leveling the uneven sites. 14. No allottee under this policy shall dispose of his plot for period of ten years from the date of transfer of the ownership to him. However the transfer of residential plot in the Urban Estate shall be allowed to be made in case of death of the allottee in favour of his hairs. However, the transfer can be allowed before the expiry of ten years, in exceptional cases, with the prior approval of the Government. In case an allottee contravenes provisions of this para, the plot will be resumed and price paid may be forfeited by the Government. 15. The allotment is subject to the provision of the Punjab Urban Estates (Development Regulation) Act, 1964 and rules and policy framed thereunder as amended from time to time and you shall have to accept and abide by the provision of the Act/ Rules/ policy. 10. Further, it is clear that the allotment of the plot was subject to the provisions contained in the 1964 Act. Section 10 of the Act envisages provision for resumption and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recoverable from you as balance of residential/commercial plot No. 2177, Urban Estate, D road, Sector/Phase-II, at Ludhiana. Therefore, deposit a bank draft of this amount alongwith 18%interest per annum which should be in favour of Estate Officer, PUDA, Ludhiana and may be payable at any scheduled bank upto 31.01.97 in all circumstances and appear before the undersigned on the date at 11.00 a.m. in case of failure to do so, action would be initiated for resumption of allotment of plot under the conditions of allotment and under Punjab Regional and Town Planning and Development Act, 1995 and the rules made thereunder and no other opportunity would be given to you. 1............amount of balance installments. 2. amount of enhanced compensation 3. extension fee 26712/- 4. interest 5. penalty Total 26712 Sd/- Estate Officer In English PUDA, Ludhiana. 13. In response to the aforesaid letter dated 6.1.1997, the respondent agreed to pay the extension fee imposed by the Estate Officer of the appellant authority in order to avoid resumption/auction of the plot. 14. Meanwhile, the State of Punjab enacted Punjab Regional and Town Planning and Development Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. 18. The Court further came to the following conclusions:- We have thoughtfully considered the respective submissions. In our opinion, Shri Malhotra s contention on the issue of applicability of the 1995 Act to the plots allotted to the petitioners is clearly wide of the margin. A bare reading of the plain language of sub-section (4)of Section 183 of the 1995 Act makes it clear that the allotment of Section 183 of the 1995 Act makes it clear that the allotment made by the erstwhile Board will be deemed to have been made under the 1995 Act. Therefore, the construction of the building will have to be regulated by the conditions of allotment read with Rule 13 of the 1995 Rules. As a logical corollary, the extension of the time limit specified in the letter of allotment will also be governed by the provisions of the 1995 Rules and the petitioners are entitled to seek extension of the time limit by paying the fee prescribed under Rule 13 . 19. Consequently the Court declared the notices demanding enhanced extension fee as illegal and ultra vires to the provisions of 1995 Act under the Rules made thereunder. 20. It is worth to mention here that the aforesaid judgment ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Dhir, AIR 1993 SC 352, this Court has observed as under:- Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. 23. This Court in Sri Babu Ram Alias Durga Prasad vs. Sri Indra Pal Singh (Dead) by Lrs., AIR 1998 SC 3021, and P.R. Deshpande vs. Maruti Balram Haibatti, AIR 1998 SC 2979, the Supreme Court has observed that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. 24. The Supreme Court in The Rajasthan State I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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